Lame-duck suits could be costly
Filings challenge bills passed by GOP curbing power of governor, AG
“It’s going to be chaos.” Jeremy Levinson, Milwaukee attorney who often represents Democrats
MADISON – The start of the new legislative session may take place in the courthouse as much as the statehouse.
The legal bills will start piling up soon.
Litigation has started on two fronts over the December lame-duck legislative session that resulted in laws curtailing early voting and limiting the powers of the governor and attorney general.
Separately, a state representative has asked the Dane County district attorney to bring a third lawsuit to invalidate the lame-duck laws. He missed votes on the laws, he says, because Assembly leaders did not make accommodations for his disability when they convened at 4:30 a.m.
Meanwhile, a fight could develop over the stance Wisconsin takes in a multi-state lawsuit over the Affordable Care Act, known widely as Obamacare. Republicans and Democrats have disagreed over who determines how that lawsuit is conducted.
And a long-running lawsuit over Wisconsin’s election maps could go to trial as early as April. Assembly Republicans recently reached a deal to pay a Chicago law firm up to $850,000 for work on that case.
GOP Assembly Speaker Robin Vos of Rochester has said the Legislature would likely intervene in at least some of the other cases. That would involve hiring more private attorneys at taxpayer expense.
The onslaught of litigation isn’t new. Groups aligned with Democrats have brought a slew of lawsuits in recent years to challenge measures passed by Republicans regarding unions, voter ID and abortion.
But the environment for litigation is different now. The lame-duck laws gave legislators the power to more easily intervene in cases with their own lawyers. Lawmakers could bring their own attorneys into cases even as litigants chal-
lenge the validity of the law that gives them the ability to hire outside attorneys.
“It’s going to be chaos,” said Jeremy Levinson, a Milwaukee attorney who often represents Democrats.
The provision on intervening in lawsuits is “both going to be litigated itself and create a lot of confusion,” he said, adding that would be costly.
Josh Kaul, the state’s new Democratic attorney general, has decried the lame-duck laws and questioned their validity. He’s now in charge of deciding how to respond to the latest lame-duck lawsuit.
Rick Esenberg, president of the conservative Wisconsin Institute for Law & Liberty, said Kaul is duty-bound to defend the lame-duck laws.
“If Attorney General Josh Kaul does not defend the laws passed in the lame-duck session that would be extraordinary, because there is an almost certainly correct argument that the laws that were passed are constitutional,” Esenberg said in a statement.
If Kaul declined to defend the laws, that could lead to private attorneys being hired to do the work at taxpayer expense.
Voter ID, early voting
One of the lame-duck laws included a provision limiting early voting to two weeks. Others barred people from using expired college IDs to vote and shortened the period that temporary voting credentials are valid for people who have difficulty getting permanent IDs.
U.S. District Judge James Peterson struck down similar laws in 2016.
The liberal groups that brought that lawsuit returned to court last month asking Peterson to throw out the parts of the lame-duck laws that conflict with his 2016 ruling.
Just before he left office this month, Republican Attorney General Brad Schimel asked the court to keep in place the new restrictions on early voting but conceded the changes to college IDs and temporary voting credentials could not be implemented because of his 2016 ruling.
Replacing Schimel as attorney general is Kaul, who helped bring the original lawsuit challenging the state’s voting laws as a lawyer for One Wisconsin Institute and Citizen Action of Wisconsin Education Fund.
He has said the Department of Justice will continue to handle the case, but that he will not personally be involved in decisions about it.
Kaul has not detailed how he is walling himself off from the case or who the top official working on it will be.
Challenges to lame-duck session
In the latest lawsuit, voters and three groups — the League of Women Voters of Wisconsin, Disability Rights Wisconsin and Black Leaders Organizing for Communities — asked Dane County Circuit Judge Stephen Ehlke to throw out all of the lame-duck laws because they maintain the legislative session was improperly convened.
In the latest lawsuit, voters and three groups — the League of Women Voters of Wisconsin, Disability Rights Wisconsin and Black Leaders Organizing for Communities — asked Dane County Circuit Judge Stephen Ehlke to throw out all of the lame-duck laws because they maintain the legislative session was improperly convened.
Lawmakers passed the laws after calling themselves into what’s known as an extraordinary session.
The lawsuit contends such sessions aren’t valid because the state constitution says the Legislature can meet when called into special session by the governor or “as provided by law.” Extraordinary sessions are conducted under legislative rules, rather than under state statutes.
The nonpartisan Wisconsin Legislative Council in a memo this month concluded the session was in keeping with the state constitution.
The Legislature sets a schedule every two years that allows extraordinary sessions and courts have consistently ruled that lawmakers — not judges — are the ones to determine the validity of how the Legislature conducts its business, the memo determined.
“In effect the Legislature has the ability to be in session at any time during the biennial period from inauguration day to inauguration day,” atings torneys with the agency wrote.
In another challenge to how the session was conducted, Rep. Jimmy Anderson said he would ask Dane County District Attorney Ismael Ozanne to sue to invalidate the lame-duck laws because Republican lawmakers did not make accommodations for his disability.
Anderson, a Fitchburg Democrat, was paralyzed from the chest down in a 2010 car accident.
He uses a wheelchair and must be out of the chair for a certain period every day. GOP leaders could not tell him when the lame-duck votes would be held, and he went home and missed the round of voting that occurred with little notice starting at 4:30 a.m. on Dec. 5.
Anderson contended Republicans violated the open meetings law because he couldn’t be there for the votes. GOP leaders said they did not know the specifics of what he needed and would have accommodated him if they had.
If Ozanne does not bring a lawsuit, Anderson will be able to do so on his own.
The state Supreme Court in 2011 ruled that lawmakers can easily get around the open meet- law.
That ruling was made after Ozanne challenged their ability to hold a committee meeting with little notice that paved the way for abruptly passing Act 10, which greatly scaled back union bargaining for public workers.
Obamacare lawsuit continues
Wisconsin and 19 other states brought a lawsuit that resulted in a federal judge invalidating the Affordable Care Act in December.
The health-care law remains in place during appeals.
Evers and Kaul campaigned on getting Wisconsin out of the litigation, but the lame-duck law put lawmakers instead of the governor in charge of that lawsuit and others like it.
Evers said Wednesday he would change Wisconsin’s stance, signaling he would have Wisconsin side with states led by Democrats that intervened to argue the Affordable Care Act should be upheld.
Vos said Evers should work with legislators on the issue instead of using “legalistic, wiggly-word type of language” to try to switch sides.